San Francisco Diary--Journal Of An Exile

The storms have temporarily passed, the temperature is almost at sixty degrees, and the sun is shining. All in all, a beautiful day here in The City By The Bay. Unfortunately, much of the current fun is being had behind closed doors, in courtrooms, and in the automobiles of commuters traveling across The City's main bridge arteries.

Note: Bay Area commuters are not going to find their commute into San Francisco any less expensive over the next few months and years. The authority which controls all the major bridges into San Francisco (or lead there), including the most-heavily traveled Bay Bridge, now will impose increased fares during peak hours. The bridge tolls go up to $6.00 one way (no toll in the other direction). Only the Golden Gate Bridge is controlled by a separate authority, which has already raised tolls. Bad news for everybody crossing the bridges, but particularly for those using the much-beloved car-pool lanes. The drivers of those cars will be charged the same toll, but now instead of being rewarded for being "energy conscious," they will pay an additional "per passenger" toll. If it moves, charge it a toll. If it merely goes along for a ride, charge it a toll as well.

NOTE: The Proposition 8 trial has now moved into its second phase, and the testimony is now heating up. The plaintiffs rested their case-in-chief, and it's now the defendants' turn. Both lead attorneys are brilliant attorneys, but defendants' attorney was beginning to cause the pro-Prop 8 crowd some nail-biting by asking so few questions on cross-examination during the plaintiffs' case. It has turned out that lead attorney David Boies was using tactical restraint. He had asked few questions earlier, and reserved his cross-examination for matters where the testimony was clearly pure opinion, didn't address the equal protection constitutional argument, or was patently wrong. He left the defense "experts" pretty much alone to hang in the wind on their social issues.

Boies first recalled plaintiffs' witness David Blankenthorn, a current convert to the anti-Prop 8 position, and asked him pointed questions about the inconsistency in his direct testimony relating solely to the social impact of Prop 8 and its prior legal history. That gave Boies an opportunity re-open the touchy-feely aspects of the formerly anti-gay marriage witness who testified about the sociological impact of gay marriage. Boies was able that way to put the purely sociological aspects of the anti-Prop 8 lawyers back in front of the judge (this is a non-jury trial). Plaintiffs were arguing that one's feelings about gay marriage are more important than centuries of law and constitutional precedent regarding marriage.

Blankenship had previously espoused publicly, financially and in articles the position that "'leading scholars' share his view that same-sex marriage would weaken heterosexuals' respect for the institution and accelerate a half-century-old trend of increased cohabitation and rising divorce rates." On direct testimony, Blankenship had failed to mention that in a 2007 book he wrote, he stated: "We would be more American on the day we permitted same-sex marriage than we were on the day before." Not only was that inconsistent with his prior positions, but Blankenthorn was unable to explain what had changed his mind other than anectdotal sympathy for certain gay couples he knows of. Lead attorney for plaintiffs, Ted Olson, in his own tactical move not to emphasize the weakness of the sociological arguments, asked only a few short questions on re-direct examination in an attempt to redeem the seeming confusion of the witness.

Then Boies brought on his string of legal experts to counter the few legal scholars that Olson had called on direct. Claremont-McKenna law professor Kenneth Miller testified about the due process arguments critical to the entire case. He pointed out that there is no genuine legal difference between the legal rights of California domestic partners and those of traditional marriage partners. He contends that the word "marriage" is a political definition, not a legal one, and therefore belongs in the political arena, not in the courts. The definition of marriage can be altered by appropriate amendment to the state constitution just as Prop 8 and the subsequent confirmation by the state Supreme Court were accomplished. Miller testified that "California attitudes toward the definition of marriage have been constantly evolving, but that due process arguments are invalid because the plaintiffs have yet to point out where gay marriage proponents are actually denied any access to domestic bliss that is available to heterosexual couples under current California law, the effects of the upholding of Prop 8, and the adequate independent state grounds restraint on federal court proceedings."

Boies then called a series of legal scholars who testified that the definition of "marriage" was a purely political matter, unrelated to constitutional due process and equal protection arguments which will ultimately be the only issue which will be addressed by future appellate courts. Plaintiffs' academic witnesses had argued that allowing gays and lesbians to marry would benefit the couples and their children and improve the status of marriage without affecting opposite-sex couples. Each of the defendants' legal witnesses in some way made it clear that they considered that testimony to be interesting and perhaps even true, but had nothing to do with the due process and equal protection arguments. Those are purely sociological and political questions, not legal questions. Olson again soft-pedaled his cross-examination so as to avoid emphasizing the strength of the defendants' arguments. Some of the defendants' expert witnesses actually support gay marriage, but insist that the courts are the wrong place to be pursuing that goal. That's where the more germane issue resides with the political process, the initiative constitutional amendment process, and the ballot box. If Prop 8 is to be overturned, let it be done by the voters on a superseding ballot measure.

The outcome of the trial may end up being the result of the active participation of Judge Vaughn Walker, who has frequently indicated his pro-plaintiff positions on the record, from granting the original plaintiffs' motions to proceed to trial, to frequent reiterations of the plaintiffs' position in the form of questions to the witnesses. He also allowed testimony from San Diego Mayor Jerry Sanders, who gave a teary-eyed litany of his sins against his lesbian daughter by previously supporting Prop 8 which at best had a cumulative effect on the hearts-and-flowers "how do you feel?" therapeutic psycho-sociological approach to the law. The judge is doing an excellent job of convincing himself.

This is beginning to get interesting, and if Olson continues on his current course, he is planning on relying on rebuttal testimony and closing argument (at which he is possibly the best in the country) rather than attacking the defendants' position directly. Of course, Boies is no slouch in this area either, and in civil trials neither side has the advantage in closing argument, unlike criminal trials where the prosecution gets the last word every time. Both sides are merely preparing their record on appeal, where lengthy appeals are both inevitable and will ultimately be disposed of at the highest court levels.

NOTE: On Wednesday, Steve Jobs of Apple introduced his newest product at the San Francisco Yerba Buena Center. Interestingly, the rollout took place at the Cultural Center rather than the more typical rollout out at the Moscone Tech forum. I'm not quite sure what that actually means. Reactions and critical evaluations of the new "I-Pad" have been mixed, and it remains to be seen if it will be successful financially, even after the original estimated cost of the gadget had been halved by the time of the announcement.

NOTE: San Francisco actually has a somewhat serious Republican rival to Nancy Pelosi for the general election in November, though he hasn't won the primary yet. There's a lot of buzz about the self-described libertarian-conservative candidate. He's certainly not the typical RINO put up by the local Republican powerhouse, the San Francisco Republican Central Committee. He probably has the general election prospects of a snowball in hell, but considering our recent frigid San Francisco weather and the wind blowing in from Massachusetts, maybe this snowball actually does have a chance (though I'm not holding my breath). Boston isn't Massachusetts, and San Francisco isn't California.

A Fordham University graduate in Business Administration, John Dennis has founded two very successful real-estate related businesses, and is very savvy in the use of the internet for raising funds and getting his message out. He bolted from the SF Central Committee and became a member of the more conservative San Francisco Republican Liberty Caucus. Dennis is opposed entirely to government-controlled health, care, cap 'n tax, and the Cyber-Security Act which gives the President near-dictatorial power over the internet during a crisis, but grants the administration almost unfettered discretion in determining exactly exactly what a "crisis" is with little oversight from Congress. Let us not forget that the unofficial position of the Democratic Party is to leave "no crisis unexploited" and leftist Democrats have declared multiple crises over the state of America since Obama's election.

Dennis supports health-care reform in the form of free-market competition, with heavy emphasis on private insurance being closely monitored by regulators, but essentially fully free to market across state lines and to be exempt from antitrust legislation. He opposes illegal immigration categorically, and adds that it seriously weakens the American dollar. While supporting much more limited legal immigration, he also proposes drastic penalties on businesses that hire illegals, and wants "guest worker" visas that would eventually allow the fast-track to immigrants who arrive here legally and follow all the traditional paths to American citizenship, including assimilation and disavowal of all prior allegiances.

He is a doctrinaire gun-ownerhsip supporter, who goes so far as to say "I don't even need a Second Amendment to tell me that I have the right to defend myself," and he sees gun ownership as a mainstay in protecting against government tyranny. He opposes Social Security in its present form as a "pyramid scheme," and supports an opt-out system allowing citizens to choose a private retirement plan with corresponding tax equalization consequences with Social Security, and no penalty for the private plan doing better than the government plan. To the best of my knowledge, he has not yet taken a position on those who invest in private plans that fail or produce less than the current Social Security plan, but since Social Security is taking the fast-train to bankruptcy, I'm not sure how much of an issue that really is.

He supports two of my favorite positions. First, he believe the Constitution ought to be amended to repeal the Seventeenth Amendment providing for direct election of Senators, and wants it returned to the legislatures of the various states. Second, he believes that the Tenth Amendment is abundantly clear about the extent to which the federal government is allowed to preempt state decisions.

He strongly opposes federal funding for abortion and fetal stem-cell research, and opposes government-paid political junkets (with special emphasis on Nancy Pelosi as the biggest offender).

Where he may be unclear so far is where he stands on some issues and whose political camp he will sit in. He got his first experience as a Get Out The Vote volunteer in the 2008 presidential race, supporting candidate Ron Paul. His energy policy position is closely akin to the Democratic position that "the key to energy needs is the concept of improved relations with foreign countries because the federal government's only energy policy should be its foreign policy (emphasis added). He has so far failed to express his opinions on domestic energy production, and that will need to be seriouly addressed in the near future. He opposes extension of the Bush tax-cuts but advocates spending reductions to reduce the federal spending spree. It seems clear that right now, he only understand one-half of the Laffer Curve. He somehow thinks that by raising income taxes, that money will somehow mystically be put back in the taxpayers' pocket by reduced federal spending. He wants to abolish the Federal Reserve, and has not indicated any strong reasons for doing so other than it's "straight out of the Communist Manifesto" without explaining why abolition would be preferable to top-to-bottom reform of the Federal Reserve system.

He believes that gay marriage should be a strictly state issue without federal interference, but has not yet discussed how he would feel about a federal ban on enforcement of "sister-state judgments" (without banning banning gay marriage or defining marriage itself) via the constitutional Amendment process.

Until those issues are clarified, I'm not ready to throw my full support behind Dennis, but even if I don't like his positions when clarified, he's still head and shoulders above every other candidate the Republicans have produced. Still, his personal opposition to gay marriage (even though he would accept it if it becomes the people's will) will go over like a lead balloon here. The vast majority of San Franciscans believe that any opposition to gay marriage is a hate crime. And don't forget, he is running for a House seat from San Francisco.